Medical malpractice case explores parameters of physician's duty to secure informed consentDeborah Compton sued Docors Helen Pass and Jane Pettinga and Beaumont Hospital, alleging that they did not satisfy the legal standard of care in securing her informed consent to breast cancer surgery. Compton claimed that the doctors included her in a study protocol [NASB Clinical Trial B-32] that dictated removal of 18 axillary lymph nodes without adequate explanation of the likely consequences. She maintained that if she had been properly informed, she would have chosen a sentinel node procedure that would have preserved greater arm function. In support of her claim, she offered into evidence the consensual tape she made of the physician visit where the two procedures were explained to her.
The two doctors offered numerous objections to Compton's claims and in two prior appeals, lower courts granted summary disposition against her. In each case, the Supreme Court overturned the lower court decisions and sent the case back for re-evaluation. This time around (the third appeal) the Court of Appeals panel rejected the physician's arguments prior to an appeal to the Supreme Court. The panel made several rulings that could have future application to other claims.
First, it held that Dr. Pettinga remained responsible for securing the patient's informed consent to participation in a surgical procedure, even though she attempted to delegate that responsibility to a nurse. The court noted that it was irrelevant that Pettinga did not meet Compton before the surgicaly admission: her duty was to conform to the standard of practice in the field. The only expert testimony confirmed that surgeons participating in medical research must attest to their patients' individual informed consent [just as Pettinga did on Compton's form].
Further, the Court held that there was no merit to the Defendants' arguments alleging that Compton had not offered evidence of the standard of care regarding informed consent. She had produced as a witness a qualified specialist who testified that the standard of care was breached. Since facilities available to the surgeon were not an issue in an informed consent case, the witness was not required to testify to familiarity with local practice.
The doctors objected to the admission of the tape that Compton had made of her "consent" visit with Dr. Pass, even though one would suspect that this was the best evidence of the quality of information provided. The doctors' insurer claimed that the tape should not be admitted because on 45 occasions during the long visit, there was a 1/2 second gap in audibility. The Court noted that Michigan courts look with favor upon the admissibility of consensually-recorded conversations and that the instant recording was substantially reliable. The Defendants' complaints about the very brief periods of inaudibility were properly directed to the weight to be given to the recording and not to the admissibility of it.
The Court also ruled that the Plaintiff's expert witness had met the threshold required for proving causation of the damages alleged by Compton. The witness had testified that in his opinion, "to a reasonable medical certainty," Compton would not have suffered the permanent complications she did, if a sentinel node procedure had been elected. Given this testimony and assuming that the Defendants will offer contradictory testimony, the issue of causation is one for the jury.
Lastly, the Court upheld the lower court's decision that limited the degree to which the insurance attorneys could introduce evidence about Comptons smoking history, use of controlled substances, litigation history or dishonest acts. The Court ruling that was upheld allowed the Defendants to admit testimony that would weigh upon Compton's credibility, but disallowed testimony that did not relate to credibility and could not be supported as relevant to causation. Thus, for example, if Compton was a previous smoker but had denied that fact under oath, she might be questioned about her credibility but the defendants could not argue that smoking caused her underlying cancer---absent scientific support for that position.